I'd like to begin by stating that I have nothing against cyclists per se. Ever since the...read more
I have one staff member on maternity leave and due back next year and another due to start maternity leave, who will be replaced by someone on secondment for a year. The person on maternity leave plans to apply for this role. Legally should she expect to get the role if she is likely to be on leave for most of it, even though we need someone to start immediately? Can we ask her to return from leave early?
When it comes to recruiting for the maternity cover, the legal position is that applicants must be treated equally. That is to say, you cannot treat the applicant who is currently on maternity leave less favourably than the others throughout the application and selection process.
With that in mind, it is good practice to apply a consistent system of scoring for the application and interview process and keep a written record of the decision-making process. In the event that the candidate on maternity leave is unsuccessful, and she believes this was due to her maternity leave, she may seek to make a claim for discrimination and your decision-making process could come under close scrutiny. This is particularly relevant given that you think the three candidates are equally as strong as one another and it might be a difficult decision.
If the applicant who is on maternity leave proves to be the strongest candidate for the role in the selection process, you should offer her the position if you want to avoid potential claims. It does not make a difference that she would potentially be working for only five months of the 12-month fixed term: to not offer her the job if she were the best candidate would be discriminatory.
If she was successful in securing the maternity cover role, you would not have to wait for her to return from maternity leave for the new role to commence. The start date can be as soon as you would like, even if the candidate does not have her first working day in the role for a number of months.
You are correct that you cannot ask her to return early from her maternity leave as she is entitled to this period away from work. She may be thinking about returning early and you can have a conversation to ask if she might like to return to work sooner, but you cannot retract your offer if she does not want to return sooner than planned, or pressure her to return sooner.
You said that you need someone to start in the role immediately. In the event that the candidate on maternity leave is successful and she does not choose to return to work sooner than July 2022, you would need to recruit to cover the period that she will be away from work to avoid the gap you describe. In that scenario, one of the other candidates you interviewed might be able to provide suitable cover until she returns to work. Although this might not feel like the most commercial option, you should be mindful of the risk of being subject to a discrimination claim and the potential costs involved in defending it.
*Marie Horner is a partner and experienced employment law solicitor at Langleys Solicitors in York. She is also CIPD qualified in HR management.